Having disposed of the legal issues on the validity of the oral partition of the estate of Teodorico Givero and Severina Genavia, let us proceed to the factual issue on the claim of the defendant Venancio Givero that the portion of the property in question occupied by him and his co-defendants belonged to him as his rightful share in the estate of his father which he started to occupy and possess as owner in 1952.
There are proven facts in this case which belie this claim of Venancio Givero. His brother Luciano and sister Maria, who have no reason to perjure against their brother Venancio were positive in their testimony that the property in question is the share of their brother Rufino and that the share of Venancio is found in Balocawe. This testimony of witnesses Maria and Luciano is corroborated by the judicial admission made by Venancio Givero in his answer that the Balocawe properties were divided among some of his brothers and sisters, retaining for himself 7,580 sq. meters under Title No. P-9542. His payment of the tax delinquency of said property, granting the same is true, did not make him the owner of said property. The properties in Balocawe remained under co-ownership and his right is limited to compel his other co-heirs to contribute to the preservation of the thing owned in common. (Art. 395, Old Civil Code). Venancio Givero was aware of this as shown by the fact that he partitioned the Balocawe properties among his other co-owners. Again, he claims that he had been in open, adverse, and public possession of this portion of the property in question since 1952. However, on April 20, 1980, Myrna Hallig Manalo, a granddaughter of Venancio, bought 225 sq. meters of the land in question within the area claimed by Venancio Givero (Exh. "2") from Remedios vda. de Givero with the conformity of the plaintiffs. If indeed his claim of ownership since 1952 was adverse, open and public, why was this fact not known to the members of his family even in the year 1980? But the most telling evidence against this claim of ownership by Venancio Givero is the unrebutted testimony of plaintiff Maximo Givero to the effect that this property claimed by Venancio Givero is within the original area of 12,952 in the Deed of Donation Exh. "A". Thus:q. What is the actual area claimed by the defendant?
a. 1/2 hectare actually occupied by the defendant
q. Is this from the original area from 12,952 sq. meters or outside?
a. It is within that area.(TSN April 16, 1989 p. 15)
In his testimony, Venancio Givero admitted that the share of his brother Rufino, was given to his widow, Remedios vda. de Givero in the form of a donation. And in fact, when this donation was made in 1956 (Exh. "A"), Venancio Givero was a witness to said transaction. Having participated in the delivery of the share of Rufino Givero to his heirs and knowing the metes and bounds of said property, he is estopped from claiming ownership of any portion of that property. (Art. 1431, 1432, and 1433, NCC).
From the testimonies of Remedios vda. de Givero and Maximo Givero, it is clear that this property which corresponds to the share of Rufino Givero when cadastrally surveyed was designated as Lot No. 2618 and the area increased to 21,736 sq. meters. This is the property which belong to the plaintiffs Maximo Givero and Loreto Givero as well as the heirs of their deceased brother, Juan Givero. From the evidence presented, it appears that some portions of this property had been sold by Remedios vda. de Givero with the consent of the plaintiffs. The sales made are valid and not null and void as claimed by the defendants.
There are sufficient evidences showing that the defendant Venancio Givero through the execution of a Deed of Ratification and Confirmation
of Ownership (Exh. "11") was able to declare in his name for taxation purposes a portion of the property in question (Exh. "12"). The issuance of said tax declaration No. 13-178 in the name of Venancio Givero as owner, cast a cloud on the title of the plaintiffs and their other co-heirs. This is an error which should be corrected by having this tax declaration and other subsequent tax declarations that may have been issued, cancelled by the Office of the Provincial Assessor. Because of these acts of the defendants, the plaintiffs were forced to bring this case to Court and should be entitled to attorney's fees and other litigation expenses. (Art. 2208 (11) NCC).5
WHEREFORE, the Court renders judgment:
1. Finding the plaintiffs the owner of Lot No. 2618, of the Matnog cadastre, the property in question;
2. Ordering the defendants to vacate the premises and to remove whatever improvements they may have introduced on said property; and perpetually enjoining them from further molesting the plaintiffs in the possession of the property in question.
3. Ordering the defendants jointly and severally to pay the plaintiffs as damages the amount of P5,000.00 representing attorney's fees and other litigation expenses.
4. Ordering the Office of the Provincial Assessor to cancel TD No. 13-178 in the name of Venancio Givero, entered in the real property roll for 1982 and for this purpose the plaintiffs are ordered to furnish said office a copy of this Decision for the guidance and compliance of that office.
SO ORDERED.6
Section 1. Filing of petition with Supreme Court. ” A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (1 a, 2a)10
(a) When the findings are grounded entirely on speculation, surmises, or conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;
(g) When the CA's findings are contrary to those by the trial court;
(h) When the findings are conclusions without citation of specific evidence on which they are based;
(i) When the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or
(k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.
In the case at bar, it is clear from the testimonies of Maria and Luciano Givero, sister and brother, respectively, of appellant Venancio Givero, that the properties were assigned to each of the 11 children even prior to their father's death, with their parents pointing to them their respective shares. With respect to the shares of the younger children, however, it appears from Maria's testimony that the properties were administered by their mother, Severina, while they were not yet old enough to handle the same. This was the reason why Severina appeared to be the one who delivered and conveyed to the other children their shares to the inheritance, which included the share of the youngest son, Rufino, which share was actually delivered to the latter's heirs as he predeceased Severina. Clearly, therefore, the fact that it was Severina who actually conveyed the properties to the said heirs of Rufino does not in anyway contradict the fact that the partition was actually made by Teodorico prior to his demise. The basis of their ownership to the properly is indubitably the right vested on their said predecessor-in-interest at the time of Teodorico's death. The existence of the Deed of Donation is evidently a mere surplusage which does not affect the right of Rufino's heirs to the property.13
Endnotes:
* In lieu of Justice A. D. Brion who is on leave per Special Order No. 940 dated February 7, 2011.
1 Rollo, pp. 85-97; penned by Associate Justice Mercedes Gozo-Dadole (retired), and concurred in by Associate Justice Salvado J. Valdez, Jr. (retired and deceased) and Associate Justice Sergio L. Pestano (retired and deceased).
2 Id., pp. 49-53; penned by Judge Ireneo B. Escandor.
3 Id., pp. 87-88.
4 Id., pp. 88-89.
5 Id., pp. 51-53.
6 Id., p.53.
7 Id., p. 92.
8 Id. P. 27.
9 D.M. Wenceslao and Associates, Inc. v. Readycon Trading and Construction Corporation, G.R. No. 154106, June 29, 2004, 433 SCRA 251.
10 The rule, already amended by A.M. No. 07-7-12-SC, effective December 27, 2007, now reads:
Section 1. Filing of petition with Supreme Court. ”A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the, Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.
11 Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695.
12 Sampayan v. Court of Appeals, G.R. No. 156360, January 14, 2005, 448 SCRA 220; Insular Life Assurance Company, Ltd. v. Court of Appeals, G.R. No. 126850, April 28, 2004, 428 SCRA 79; Langkaan Realty Development, Inc. v. United Coconut Planters Bank, G.R. No. 139437, December 8, 2000, 347 SCRA 542, 549; Nokom v. National Labor Relations Commission, G.R. No. 140043, July 18, 2000, 336 SCRA 97; Commissioner of Internal Revenue v. Embroidery and Garments Industries (Phil), Inc., G.R. No. 96262, March 22, 1999, 305 SCRA 70; Sta. Maria v. Court of Appeals, G.R. No. 127549, January 28, 1998, 285 SCRA 351.
13 Rollo, p. 95 (bold emphasis supplied).